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State of Bihar Vs. Birla Gwalior P. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberSupreme Court Appeal No. 106 of 1972
Judge
Reported inAIR1974Cal202,78CWN384
ActsConstitution of India - Articles 132(1) and 133(1); ;Limitation Act - Section 5
AppellantState of Bihar
RespondentBirla Gwalior P. Ltd. and ors.
Appellant AdvocateHari Prasanna Mukherjee and ;Narottam Chatterjee, Advs.
Respondent AdvocateBhaskar Gupta and ;M. Chowdhury, Advs.
DispositionApplication dismissed
Cases ReferredState of Jammu and Kashmir v. Thakur Ganga Singh
Excerpt:
- .....hearing of the appeal on merits after condonation of delay. the said application was heard by a division bench of this court constituted by the then chief justice and my learned brother. the said application was dismissed by an order dated november 10, 1971, on the view that the delay for the period from march 13, 1971, till july 3, 1971, in presenting the memorandum of appeal was not explained. the present application has been filed, as already stated, for a certificate for appeal to the supreme court against the said order.2. mr. hari prasanna mukherjee, learned advocate appearing for the petitioner, state of bihar, has urged that the order dismissing the application under section 5 of the limitation act was in fact a final order dismissing the appeal itself and putting an end to.....
Judgment:

Salil Kumar Datta, J.

1. This is an application by the State of Bihar for a certificate of fitness for appeal to the Supreme Court under Articles 132(1) and 133(1) of the Constitution. It appears that on the application filed by the respondent No. 1, Birla Gwalior Private Limited under Article 226(1) of the Constitution, Anil Kumar Sen, J., by order dated December 21, 1970, issued a writ setting aside and quashing an order dated November 11, 1967 passed by the State of Bihar determining the mineral lease in favour of the said company and also directing the said Government not to give effect to the same. The State of Bihar, it appears, long after the order of December 21, 1970, on or about July 3, 1971, filed an application under Section 5 of the Limitation Act along with the memorandum of appeal praying, inter alia, for condonation of the delay that had occurred in filing the appeal and also for hearing of the appeal on merits after condonation of delay. The said application was heard by a Division Bench of this Court constituted by the then Chief Justice and my learned brother. The said application was dismissed by an order dated November 10, 1971, on the view that the delay for the period from March 13, 1971, till July 3, 1971, in presenting the memorandum of appeal was not explained. The present application has been filed, as already stated, for a certificate for appeal to the Supreme Court against the said order.

2. Mr. Hari Prasanna Mukherjee, learned Advocate appearing for the petitioner, State of Bihar, has urged that the order dismissing the application under Section 5 of the Limitation Act was in fact a final order dismissing the appeal itself and putting an end to the proceeding. He further contended that the application is governed by the provisions of Article 133(1) as amended by the Constitution 30th Amendment Act andthe provisions thereof as amended have not yet come up for consideration before the Supreme Court. The provisions in the said Article as also under Article 132(1) to the effect that 'the case' is to involve a substantial question of law means and implies the entire lis between the concerned parties. He also referred to the judgment of the original court to show that it involved substantial questions of law of public importance requiring adjudication by the Supreme Court.Mr. Mukherjee contended that the tests laid down in the said Articles were thus satisfied and the certificate prayed for should be granted.

3. It appears to us however, that the order rejecting an application under Section 5 of the Limitation Act does not of its own force determine any rights between the parties. As has been held in Prem Chand v. State of Bihar, reported in : [1951]19ITR108(SC) an order to be a final order must of its own force bind or affect the rights of the parties. The effect of the order of the Division Bench was not to condone the delay inpresenting the appeal and in the said judgment there was no adjudication of the rights of the parties involved in the original writ proceeding. Mr. Mukherjea's contention that by the order under challenge the entire litigation was put to an end as there was no further scope for agitating the matter also has no any substance. It would appear, as we have already indicated, that the impugned order did not concern itself with the rights of the parties in the proceeding which was already determined in the original trial and the Division Bench only refused to condone the delay in the facts and circumstances of the case.

4. The next contention of Mr. Mu-kherjee is that under the provisions of the relevant Articles 'the case' means and implies the entire Jis between the parties which concerns with or has relation to the interpretation of the relevant rules of the Mineral Concession Rules and, accordingly, that the present application came within the scope and ambit of Article 132(1) and Article 133(1) of the Constitution. We are unable to accept the contention so raised as the case before the Division Bench was about the condonation of the delay in filing of Memorandum of Appeal and it could not be said thereby that the entire case or lis of the parties was involved before the said Bench. Mr. Mukherjee has relied on the decision in the case of the State of Jammu and Kashmir v. Thakur Ganga Singh, : [1960]2SCR346 in which it has been held that the final authority to interpret the Constitution is the Supreme Court and the amended Article has not yet come up before the Supreme Court for its interpretation. As we have already noted the present application does not involve the entire case or lis between the parties but only matters in the application which was made before the Division Bench under Section 5 of the Limitation Act. The Division Bench, as we have already stated, was thus not concerned at all with the questions of law and fact which were involved in the original writ application. For all the above reasons we are of the opinion that it could not be said that the present application includes the lis in its entirety between the parties as contended by Mr. Mukherjee.

5. As all contentions raised on behalf of the petitioner fail, this application is dismissed. There will be no order for costs in the circumstances.

S.K. Mukherjea, J.

6. I agree.


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